[Federal Register Volume 87, Number 186 (Tuesday, September 27, 2022)]
[Rules and Regulations]
[Pages 58456-58458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20973]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Part 433

[CMS-9912-N]
RIN 0938-AU35


Medicaid Program; Temporary Increase in Federal Medical 
Assistance Percentage (FMAP) in Response to the COVID-19 Public Health 
Emergency (PHE); Reopening of Public Comment Period

AGENCY: Centers for Medicare & Medicaid Services (CMS), Department of 
Health and Human Services (HHS).

ACTION: Interim final rule; reopening of public comment period.

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SUMMARY: On November 6, 2020, CMS published an interim final rule with 
request for comments (IFR) entitled ``Additional Policy and Regulatory 
Revisions in Response to the COVID-19 Public Health Emergency.'' The 
IFR set forth certain requirements in CMS regulations that States must 
follow in order to claim a temporary increase in Federal matching funds 
for their Medicaid programs under the Families First Coronavirus 
Response Act (FFCRA). In light of the possibility of changed 
circumstances since publication of the IFR and other policy 
considerations, CMS is considering modifying those requirements. CMS is 
soliciting additional information from the public on any issues that 
may be pertinent to these potential modifications by reopening the 
public comment period for an additional 30 days.

DATES: The comment period for the amendments to 42 CFR 433.400 in the 
interim final rule published at 85 FR 71142 on November 6, 2020, is 
reopened. To be assured consideration, comments must be received at one 
of the addresses provided below, by October 27, 2022. (See the 
SUPPLEMENTARY INFORMATION section of this document for a list of the 
provisions open for comment.)

ADDRESSES: In commenting, refer to file code CMS-9912-N.
    Comments, including mass comment submissions, must be submitted in 
one of the following three ways (please choose only one of the ways 
listed):
    1. Electronically. You may submit electronic comments on this 
regulation to https://www.regulations.gov. Follow the ``Submit a 
comment'' instructions.
    2. By regular mail. You may mail written comments to the following 
address ONLY: Centers for Medicare & Medicaid Services, Department of 
Health and Human Services, Attention: CMS-9912-N, P.O. Box 8016, 
Baltimore, MD 21244-8016.
    Please allow sufficient time for mailed comments to be received 
before the close of the comment period.
    3. By express or overnight mail. You may send written comments to 
the following address ONLY: Centers for Medicare & Medicaid Services, 
Department of Health and Human Services, Attention: CMS-9912-N, Mail 
Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
    For information on viewing public comments, see the beginning of 
the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: Stephanie Bell, (410) 786-0617.

SUPPLEMENTARY INFORMATION: 
    Provisions open for comment: We will consider comments that are 
submitted as indicated above in the DATES and ADDRESSES sections on 42 
CFR 433.400.
    Inspection of Public Comments: All comments received before the 
close of

[[Page 58457]]

the comment period are available for viewing by the public, including 
any personally identifiable or confidential business information that 
is included in a comment. We post all comments received before the 
close of the comment period on the following website as soon as 
possible after they have been received: https://www.regulations.gov. 
Follow the search instructions on that website to view public comments. 
CMS will not post on Regulations.gov public comments that make threats 
to individuals or institutions or suggest that the individual will take 
actions to harm the individual. CMS continues to encourage individuals 
not to submit duplicative comments. We will post acceptable comments 
from multiple unique commenters even if the content is identical or 
nearly identical to other comments.

I. Background

    The Families First Coronavirus Response Act (FFCRA) was enacted on 
March 18, 2020 (Pub. L. 116-127). Included among its provisions is 
section 6008, which provides a temporary 6.2 percentage point increase 
to each qualifying State and territory's Federal Medical Assistance 
Percentage (FMAP) (``temporary FMAP increase'') under section 1905(b) 
of the Social Security Act (the Act). States must meet certain 
conditions in order to receive the temporary FMAP increase. 
Specifically, as relevant to this notice, under section 6008(b)(3) of 
the FFCRA, States must provide that an individual who is enrolled for 
benefits under the Medicaid State plan (or waiver of that plan) as of 
March 18, 2020, or enrolls for benefits under such plan (or waiver) 
during the period beginning March 18, 2020, and ending the last day of 
the month in which the COVID-19 public health emergency (PHE) period 
ends, shall be treated as eligible for such benefits through the end of 
the month in which such emergency period ends unless the individual 
requests a voluntary termination of eligibility or the individual 
ceases to be a resident of the State.
    Initially, CMS issued guidance informing States how to comply with 
section 6008(b)(3) of the FFCRA through Frequently Asked Questions 
(FAQs) documents posted on Medicaid.gov on April 13, 2020; May 5, 2020; 
and June 30, 2020.\1\ As described more fully in those FAQs, under CMS' 
initial interpretation of section 6008(b)(3) of the FFCRA, to receive 
the temporary FMAP increase, a State was required to keep beneficiaries 
enrolled in Medicaid, if they were enrolled on or after March 18, 2020, 
with the same amount, duration, and scope of benefits, through the end 
of the month in which the COVID-19 PHE ends. Additionally, States could 
not subject these beneficiaries to any increase in cost sharing or 
beneficiary liability for institutional services or other long-term 
services and supports during this time period.
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    \1\ The April 13, 2020 and June 30, 2020 FAQs were incorporated 
into one comprehensive FAQs document on May 5, 2020, and last 
updated on January 6, 2021. Available at https://www.medicaid.gov/state-resource-center/Downloads/covid-19-faqs.pdf.
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    On November 6, 2020, CMS issued an interim final rule with a 
request for comments entitled, ``Additional Policy and Regulatory 
Revisions in Response to the COVID-19 Public Health Emergency,'' that, 
among other things, added to 42 CFR part 433 a new subpart G, Temporary 
FMAP Increase During the Public Health Emergency for COVID-19, which 
included a newly established Sec.  433.400 (85 FR 71142, 71144, 71160 
through 71167, 71197 and 71198). In Sec.  433.400, CMS set forth a 
different approach to implementing section 6008(b)(3) of the FFCRA (85 
FR 71144). In the preamble, CMS explained that section 6008(b)(3) of 
the FFCRA is ambiguous and that States had expressed concern that CMS' 
interpretation of section 6008(b)(3) of the FFCRA in the FAQs made it 
challenging for them to manage their Medicaid programs effectively (85 
FR 71161). Specifically, the States noted that CMS' initial 
interpretation severely limited State flexibility to control program 
costs in the face of growing budgetary constraints and developing 
fiscal challenges during the COVID-19 PHE. States argued that this 
frustrated one purpose of section 6008 of the FFCRA--to provide 
additional support to State Medicaid programs in their response to the 
COVID-19 pandemic. Under the IFR's approach to implementing section 
6008(b)(3) of the FFCRA, States were still required, as a condition for 
receiving their temporary FMAP increases, to maintain beneficiary 
enrollment in Medicaid, but they were also permitted to make certain 
changes to the amount, duration, and scope of benefits and to 
beneficiary cost-sharing, subject to certain beneficiary protections 
set forth in the IFR (85 FR 71144, 71162 through 71167). The approach 
taken in the IFR represented an attempt by CMS, based on the 
information before the agency at the time the IFR was issued, to 
balance the interests of States, health care providers, and 
beneficiaries.

II. Changed Circumstances

    Since issuing the IFR, CMS has become aware that the IFR's 
implementation of section 6008(b)(3) of the FFCRA has negatively 
affected some Medicaid beneficiaries. During the IFR's comment period, 
CMS received a number of comments opposing the approach taken in the 
IFR and requesting that CMS instead choose to adopt its original 
interpretation of section 6008(b)(3) of the FFCRA. Some commenters 
expressed specific concern about the potential loss of Medicaid 
benefits that could be experienced by beneficiaries transitioned from 
an eligibility group providing full coverage to a Medicare Savings 
Program eligibility group, which provides coverage for Medicare 
premiums and cost sharing alone. Most recently, Medicaid beneficiaries 
who claim they were harmed when their States changed their Medicaid 
coverage following the issuance of Sec.  433.400 have sued CMS, seeking 
to invalidate the IFR. As CMS explained in the IFR, CMS' original 
interpretation provided the strongest protections for beneficiaries and 
their access to medically necessary services during the COVID-19 
pandemic. CMS is also cognizant that the COVID-19 PHE remains ongoing.
    Additionally, CMS understands that the fiscal situations of many 
States may have changed since the IFR was issued in November 2020. See, 
for example, American Rescue Plan Act of 2021 section 9901, 42 U.S.C. 
802 (appropriating hundreds of billions of dollars to ``mak[e] payments 
to States, territories, and Tribal governments to mitigate the fiscal 
effects stemming from the [COVID-19 PHE]''). This funding may have 
mitigated the concerns that States had raised with CMS and that CMS had 
considered in issuing the IFR. Accordingly, some of the reasons 
underlying the approach taken in the IFR may no longer apply.
    Given these potentially changed circumstances, CMS is now 
considering a different approach in its final rule. Specifically, CMS 
is considering returning to its original interpretation of section 
6008(b)(3) of the FFCRA described in the FAQs from April 13, 2020, May 
5, 2020, and June 30, 2020. Under this proposed interpretation, to be 
eligible for the temporary FMAP increase, a State would be required to 
keep its beneficiaries enrolled in Medicaid, if they were enrolled as 
of, on, or after March 18, 2020, and would not be permitted to reduce 
the amount, duration, or scope of their benefits or modify their cost 
sharing after the effective date of the final rule. We

[[Page 58458]]

believe this interpretation and the approach taken in the IFR are both 
reasonable approaches to implementing section 6008(b)(3) of the FFCRA. 
However, CMS plans to review the IFR to determine if consideration of 
the comments we received and changed circumstances warrant adopting the 
original interpretation of section 6008(b)(3) of the FFCRA in its final 
rulemaking.
    Consequently, CMS is considering whether (1) Sec.  433.400 should 
be rescinded, and (2) CMS should replace that provision with a final 
rule that implements its original interpretation of section 6008(b)(3) 
of the FFCRA. Additionally, if CMS chooses to take these steps, it may 
require States to offer Medicaid beneficiaries whose coverage was 
changed in a manner consistent with Sec.  433.400 an opportunity to re-
enroll in, or to have their enrollment changed back to, their prior 
coverage. Any re-enrollment in or change back to prior coverage would 
become effective beginning on the final rule's effective date. CMS is 
re-opening the comment period on the IFR entitled, ``Additional Policy 
and Regulatory Revisions in Response to the COVID-19 Public Health 
Emergency,'' to give the public an opportunity to comment on any issues 
that may be pertinent to these considerations.

III. Collection of Information Requirements

    This document does not impose information collection requirements, 
that is, reporting, recordkeeping, or third-party disclosure 
requirements. Consequently, there is no need for review by the Office 
of Management and Budget under the authority of the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et seq.).

IV. Response to Comments

    Because of the large number of public comments we normally receive 
on Federal Register documents, we are not able to acknowledge or 
respond to them individually. We will consider all comments we receive 
by the date and time specified in the DATES section of this preamble, 
and, when we proceed with a subsequent document, we will respond to the 
comments in the preamble to that document.
    Chiquita Brooks-LaSure, Administrator of the Centers for Medicare & 
Medicaid Services, approved this document on September 22, 2022.

    Dated: September 23, 2022.
Xavier Becerra,
Secretary, Department of Health and Human Services.
[FR Doc. 2022-20973 Filed 9-23-22; 4:15 pm]
BILLING CODE 4120-01-P